How to deal with an Investigation (eg pre-disciplinary hearing)

Carry out an investigation by considering the alleged conduct of the employee and preparing a list of questions to discuss with the employee/witnesses. This is an important step in advance of disciplinary action being taken against the employee.

  1. Consider suspending the employee if there is a risk they could prejudice the investigation by remaining at work – although this should be a last resort. Knee jerk or unjustified suspensions can lead to claims for constructive unfair dismissal. Suspension should be on full pay and last only as long as necessary for the investigation to be carried out. Suspension should be kept under review and the employee should be kept up to date as to the progress of the investigation.
  2. Speak to anyone who witnessed the alleged conduct of the employee and ensure that notes are kept of those discussions. The employee is entitled to see the evidence against them, in advance of a disciplinary hearing. The witnesses should be made aware of this at the time they are interviewed. Anonymous witness statements can be taken in exceptional circumstances – specific advice should be sought if this becomes an issue.
  3. Invite the employee to an investigatory meeting. The employee does not have the right to be accompanied at this meeting. However, you may allow this if you wish. It is advisable to allow the employee to be accompanied if, for example they have hearing difficulties and may benefit from someone who can use sign language or where an employee has language difficulties and may benefit from a translator.
  4. The purpose of the investigation meeting is to establish whether there is a case for the employee to answer (i.e. whether relevant disciplinary action might be taken) and no decision should be made until the employee has had an opportunity to put their case forward.
  5. Start the meeting by providing the employee with a summary of the alleged incident and inform them of the discussions you have had with any witnesses. If the witnesses are agreeable, the employee should have sight of the witness statements and any other evidence available.
  6. Give the employee the opportunity to respond to the information you have provided and take notes of any responses they provide in return. This information may be relevant in the future, particularly if disciplinary action is taken against them.
  7. Following the meeting, consider all the evidence in your possession and decide whether you have enough evidence to take disciplinary action against the employee.

If you decide that there is not enough evidence to take disciplinary against the employee, write to the employee confirming that the investigation has been completed and no further action will be taken.

If you decide that there is enough evidence to take disciplinary action against the employee, write to the employee, inviting them to a disciplinary hearing. Ensure that they are given the right to be accompanied to the hearing by either a trade union rep or a work colleague.

This check list has been prepared as a general overview. It is for guidance only and should not be considered a substitute for legal advice on the procedure to follow in specific situations.

Download the ‘How to deal with an Investigation (eg pre-disciplinary hearing)’ guide here.

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